SUMMARY AND ANALYSIS OF THE CRIMINAL PROCEDURE AMENDMENT BILL [B2B 2017] TABLE OF CONTENTS

12 May 2017 1 SUMMARY AND ANALYSIS OF THE CRIMINAL PROCEDURE AMENDMENT BILL [B2B 2017] TABLE OF CONTENTS 1. INTRODUCTION... 1 2. COURT CASES... 3 3. ANALYSING THE CPA BILL [B2-2017]... 12 4. SOURCES... 15 1. INTRODUCTION Chapter 13 f the Criminal Prcedure Act 51 f 1977 (CPA) deals with the: Capacity f an Accused t Understand Prceedings: Mental Illness and Criminal Respnsibility Sectins 77, 78 and 79 f the CPA prvide fr prcedures relating t the management f curt prcesses and custdy f remand detainees where mental illness affects the criminal prceedings. When it appears t a curt that due t a mental illness an accused persn is: incapable f understanding the prceedings (sectin 77); r incapable f appreciating the wrngfulness f his r her actins (sectin 78); then the curt is bliged t refer that persn fr bservatin. A panel f experts must be established t enquire and reprt n the mental cnditin f that persn (sectin 79). If the experts are unanimus in their findings and they are nt cntradicted by either the prsecutr r the accused, then the curt can determine the matter n the basis f their reprts withut hearing further evidence. 2 On the ther hand, where their findings are nt unanimus r, if unanimus, are disputed by the prsecutr r the accused, the curt shall determine the matter after hearing evidence. 3 Where a curt finds an accused is incapable f understanding prceedings due t a mental illness then in terms f sectin 77(6) the curt must direct that: (i) in all cases where the charges are serius (murder, culpable hmicide, rape r cmpelled rape, charges invlving serius vilence, r where the curt cnsiders 1 Updated by P Whittle 2 Sectin 77(2) f the CPA 3 Sectin 77(3) f the CPA Research Unit G Nesbitt Cntact details: 021 4038352

(ii) it necessary in the public interest) and pending the decisin f judge in chambers in terms f sectin 47 f the Mental Health Act 4 the accused must be detained, as a state patient, 5 in a psychiatric hspital r crrectinal centre (see sectin 77(6)(i)); and fr lesser ffences (r n ffence), the curt must rder the accused persn be admitted t and detained in an institutin and treated as an invluntary mental health care user in line with sectin 37 f the Mental Health Care Act 6 (see sectin 77(6)(ii)). Where a curt finds that the accused persn cmmitted the ffence but was incapable f appreciating the wrngfulness f his r her actins due t mental illness then the curt, in terms f sectin 78(6), has a discretin t direct that: (i) where the charges are serius (murder, culpable hmicide, rape r cmpelled rape, charges invlving serius vilence, r where the curt cnsiders it necessary in the public interest) the accused shuld be (a) detained in a psychiatric hspital r crrectinal centre pending the decisin f judge in chambers in terms f sectin 47 f the Mental Health Act; r (b) admitted and detained as an invluntary mental health care user in line with sectin 37 f the Mental Health Care Act; r (c) released (subject t cnditins); r (d) released uncnditinally. (ii) fr lesser ffences; (a) the accused persn be admitted t and detained in an institutin and treated as an invluntary mental health care user in line with sectin 37 f the Mental Health Care Act; r (b) released (subject t cnditins); r (c) released uncnditinally. 4 Mental Health Act 17 f 2002 Sectin 47: Applicatin fr the Discharge f a State patient. A persn wh is detained as a State patient remains in detentin indefinitely until, n applicatin made t a judge in chambers in terms f s 47 f the Mental Health Care Act, he r she is discharged. Such an applicatin may be brught by the patient r by varius ther fficials identified in s 47(1). The applicatin must be accmpanied by reasns fr the applicatin; by a reprt frm a psychlgist, if the patient has been assessed by such a persn; and by the further infrmatin specified in s 47(2). Unless the applicatin is made by an fficial curatr ad litem, the applicatin must be referred t such a curatr t make the reprt specified in s 47(3). An applicatin fr discharge cannt be made within a perid f 12 mnths frm the dismissal f any prir applicatin (s 47(4)(a)). 5 Accrding t the Mental Health a State patient is a persn s classified by a curt directive in terms f sectin 77(6)(a) r 78(6) f the Criminal Prcedure Act. 6 Mental Health Act 17 f 2002 Sectin 37: Peridic review and annual reprts n invluntary mental health care users: (I) Six mnths after the cmmencement f care, treatment and rehabilitatin services, and every 12 mnths thereafter, the head f the health establishment cncerned must cause the mental health status f an invluntary mental health care user l be reviewed. (2) Such review must state the capacity f the mental health care user t express himself r herself n the need fr care, treatment and rehabilitatin services; state whether the mental health care user is likely t inflict serius harm n himself r herself r ther peple; state whether there is ther care, treatment and rehabilitatin s ervices that are less restrictive r intrusive the right f the mental health care user t mvement, privacy and dignity; and make recmmendatins regarding a plan fr further care, treatment r rehabilitatin service... (3) The head f the health establishment must submit a preliminary reprt f the review (4) Within 30 days after receipt f the reprt, the Review Bard must t the Review Bard. (a) cnsider the reprt including btaining infrmatin frm any relevant persn; b) send a written ntice f its decisin t the mental health care user, applicant, head f the health establishment cncerned and head f the prvincial department stating the reasns fr the decisin. (5) (a) If the Review Bard decides that the invluntary mental health care user be (i) all care, treatment and rehabilitatin services administered t the user must be stpped accrding t accepted clinical practices; and (ii) the user, if admitted, must be discharged by the health establishment cncerned, unless the user cnsents t the care, treatment and rehabilitatin services. (b) The head f the Health establishment must cmply with the decisin f the Review (6) The Registrar f the High Curt must be ntified in writing f a discharge made - and discharged-- Bard. in terms f this sectin. Research Unit CPA Bill [B2-2017] Page 2 f 15

The Curts have identified certain challenges with the sectins f the CPA dealing with an accused persn with a mental illness. The prpsed amendments t sectins 77, 78 and 79 which are set ut in the Bill emanate largely frm the judgements f tw curt cases as fllws: (a) The Cnstitutinal Curt in the case f De Vs N.O and Others v Minister f Justice And Cnstitutinal Develpment and Others 2015 (2) SACR 217 (CC) which fund sectins 77(6)(a)(i) and (ii) t be invalid and uncnstitutinal. The Cnstitutinal Curt gave Parliament 24 mnths frm the date f the judgment (26 June 2015) t crrect the defects in the legislatin. (b) The findings f the Western Cape High Curt in the case f S v Pedr (B247/11) [2015] (1) SACR 41 (WCC) which identified certain challenges with the cmpsitin f the assessment panel in sectin 79. Cmment Parliament has until 26 June 2017 t crrect the defects in sectin 77 and t cmply with the Cnstitutinal Curt deadline emanating frm De Vs N.O and Others v Minister f Justice And Cnstitutinal Develpment and Others 2015 (2) SACR 217 (CC). 2. COURT CASES This sectin prvides a brief backgrund t; (i) the De Vs case (the judgments in the Western Cape High Curt and Cnstitutinal Curt); and (ii) the Pedr case (the judgment in the Western Cape High Curt). 2.1 Western Cape High Curt: De Vs N.O and Anther v Minister f Justice and Cnstitutinal Develpment and Others; In Re: Snyders and Anther v Minister f Justice And Cnstitutinal Develpment and Others 2015 (1) SACR 18 (WCC) This matter invlved tw applicatins (which were cnslidated) cncerning tw persns, Mr Llewellyn Stuurman and Mr Pieter Snyders bth with mental disabilities wh fund themselves in cnflict with the criminal justice system, facing charges f murder and rape respectively. Mr Stuurman was charged with murder, having allegedly stabbed a 14-year-ld girl t death n 10 June 2005 when he was als 14 years ld. During the curse f the trial in the reginal curt in Oudtshrn, he was referred by the curt fr bservatin in terms f sectins 77(1), 78(2) and 79(2) f the CPA. It appeared frm the evidence that Mr Stuurman had sustained a serius head injury at the age f 5, which left him severely mentally handicapped. The three psychiatrists wh examined him were unanimusly f the view that he wuld be unable t understand basic curt prceedings. Research Unit CPA Bill [B2-2017] Page 3 f 15

Mr Pieter Snyders was brn with Dwn syndrme and as a result had cgnitive challenges. In 2013, he was arrested and charged with the rape f an 11-year-ld girl. When Mr Snyders appeared at the Blue Dwn s Magistrate s Curt, he was referred in terms f s 77(1) f the Act t an enquiry t ascertain whether r nt he had the capacity t understand the prceedings. The unanimus finding f the members f the panel were that Mr Snyders was brn with Dwn syndrme with mderate mental develpmental challenges. He was accrdingly fund t be nt fit t stand trial n the basis that he was nt able t appreciate the wrngfulness f the alleged ffence and act accrdingly. The applicants had apprached the curt t questin the cnstitutinality f sectins 77(6)(a)(i) and (ii) f the CPA n the basis that the cmpulsry detentin prvided fr in thse sectins was uncnstitutinal because it infringed r threatened the rights f the accused persns in questin t equality (sectin 9), dignity (sectin 10), freedm and security f the persn (sectin 12), as well as the rights f children, as cntained in sectin 28(1)(g), read with sectin 28(2) f the Cnstitutin. In the wrds f the curt, in a nutshell, the prblem cncerns the fate f persns wh, by reasn f mental illness r intellectual disability, are unfit t be tried. 7 The High Curt nted while in sme circumstances it may be justifiable t detain a persn with a mental illness r an intellectual disability, nt every persn with a mental illness r an intellectual disability is a danger t himself/herself r t sciety. 8 The Curt held that: Sectin 77(6)(a) des nt allw a Presiding Officer t: 9 (i) Determine whether an accused persn cntinues t be a danger t sciety; (ii) Evaluate the individual needs r circumstances f that persn; r (iii) Cnsider whether ther ptins are mre apprpriate in the individual circumstances f the accused. There was n justificatin fr the differences between sectin 77(6) and sectin 78(6). Fr instance, sectin 78(6)(i) and (ii) prvide that a judicial fficer has the discretin t release an accused (with r withut cnditins) if such release is deemed apprpriate by the curt. Sectin 77(6)(a) has a particularly harsh impact n children because the presiding fficer has n discretin t cnsider alternative ptins such as the range f diversinary ptins set ut in sectin 53 f the Child Justice Act. 10 This amunted t discriminatin against children n grunds f disability. The situatin was cmpunded by the inadequacy f facilities fr children in prisns and psychiatric hspitals. Ultimately, the Curt fund that the prvisins f sectin 76(a)(i) and (ii) f the CPA were incnsistent with the Cnstitutin and invalid n the basis that they infringed a mentally ill r 7 De Vs N.O and Anther v Minister f Justice and Cnstitutinal Develpment and Others; In Re: Snyders and Anther v minister f Justice and Cnstitutinal Develpment and Others (4502/ 10, 5825/14) 2015 (1) SACR 18 (WCC); (Accessed at http://www.saflii.rg/za/cases/zawchc/2014/135.pdf) para [2] 8 De Vs N.O and Anther v Minister f Justice and Cnstitutinal Develpment and Others; In Re: Snyders and Anther v Minister f Justice And Cnstitutinal Develpment and Others 2015 (1) SACR 18 (WCC) 9 De Vs N.O and Others v Minister f Justice And Cnstitutinal Develpment and Others 2015 (2) SACR 217 (CC) para [7] 10 De Vs N.O and Anther v Minister f Justice And Cnstitutinal Develpment and Others; In Re: Snyders and Anther v Minister f Justice And Cnstitutinal Develpment and Others 2015 (1) SACR 18 (WCC) para [62] Research Unit CPA Bill [B2-2017] Page 4 f 15

intellectually disabled persns right t freedm and security f the persn as well as children s rights. 11 Althugh the Curt felt that it wuld be apprpriate t suspend the declaratin f invalidity fr 24 mnths s as t affrd Parliament an pprtunity t crrect the defect it was als cncerned that leaving the sectins unchanged in the interim wuld mean that an unsatisfactry and uncnstitutinal state f affairs wuld persist. Therefre, the Curt decided, in the shrt term, during the perid f suspensin, t rder a temprary reading-in s as t affrd judicial fficers dealing with a sectin 77(6) situatin the same discretinary ptins available under sectin 78(6)(i) and (ii) f the CPA. 12 2.2 Cnstitutinal Curt: De Vs N.O and Others v Minister f Justice And Cnstitutinal Develpment and Others 2015 (2) SACR 217 (CC) In its judgement n the applicatin fr cnfirmatin f the Western Cape High Curts declaratin f cnstitutinal invalidity f sectin 77(6)(a)(i) and (ii) f the Criminal Prcedure Act the Cnstitutinal Curt fund that: 13 There is n discretin fr the presiding fficer: The rdinary meaning f sectin 77(6)(a) des nt admit any ambiguity. It prvides fr cmpulsry incarceratin r institutinalisatin f the accused persn in in a psychiatric hspital r crrectinal centre. It amunts t an arbitrary deprivatin f freedm: A curt rder in terms f sectin 77(6)(a) deprives a persn f his r her freedm. Sectin 12(1)(a) f the Cnstitutin is clear. Any deprivatin f freedm must nt be arbitrary and the reasns prvided fr the deprivatin must be just. 11 Ibid 12 The Western Cape High Curt issued the fllwing rder: (a) It is declared that sub-paragraphs 77(6)(a)(i) and (ii) f the Criminal Prcedure Act, 1977, are uncnstitutinal. (b) The declaratin in para (a) abve is nt retrspective and its effect is suspended fr 24 mnths t affrd t he legislature an pprtunity t cure the invalidity. (c) During the perid f suspensin, sectin 77(6)(a)(i) is deemed t read as fllws (wrds inserted by this rder are underlined and wrds mitted are deleted): (i) in the case f a charge f murder r culpable hmicide r rape r cmpelled rape as cntemplated in sectins 3 r 4 f the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, r a charge invlving serius vilence r if the curt cnsiders it t be necessary in the public interest, where the curt finds that the accused has cmmitted the act in questin, r any ther ffence invlving serius vilence, be detained in a psychiatric hspital r a prisn pending the decisin f a judge in chambers in terms f sectin 47 f the Mental Health Care Act, 2002 (aa) detained in a psychiatric hspital r prisn pending the decisin f a judge in chambers in terms f sectin 47 f the Mental Health Care Act, 2002; (bb) be admitted t and detained in an institutin stated in the rder and treated as if he r she were an invluntary mental health care user cntemplated in sectin 37 f the Mental Health Care Act, 2002; (cc) released subject t such cnditins as the curt cnsiders apprpriate; r (dd) released uncnditinally. (d) During the perid f suspensin, sub-paragraph 77(6)(a)(ii) is deemed t read as fllws (wrds inserted by this rder are underlined): (ii) where the curt finds that the accused has cmmitted an ffence ther than ne cntemplated in subparagraph (i) r that he r she has nt cmmitted any ffence (aa) be admitted t and detained in an institutin stated in the rder as if he r she were an invluntary mental health care user cntemplated in sectin 37 f the Mental Health Care Act, 2002; (bb) released subject t such cnditins as the curt cnsiders apprpriate; r (cc) released uncnditinally. 13 De Vs N.O and Others v Minister f Justice And Cnstitutinal Develpment and Others 2015 (2) SACR 217 (CC) Research Unit CPA Bill [B2-2017] Page 5 f 15

Resurce cnstraints are nt a justificatin: The nly reasn imprisnment may be necessary appears t be due t resurce cnstraints; fr example, due t the shrtage f beds in psychiatric hspitals. The curt queried whether imprisnment culd be justified in the face f resurce cnstraints. The tenets f the Cnstitutin dictate that accused persns, wh are nt cnsidered dangerus, shuld nt have their freedm curtailed; (i) in a manner that is tantamunt t inhuman and degrading punishment; (ii) in a way that impinges n their dignity; and (iii) breaches their right nt t be deprived f their freedm withut just cause. 14 Imprisnment is nly viable as a stp-gap measure in certain circumstances: Fr instance, if the presiding fficer is f the pinin that the accused is likely t cause serius harm t himself/herself r thers. These instances are permissible as they serve the cnstitutinally mandated purpse f prtecting the public. Hwever, in instances where the evidence illustrates that the accused persn is unlikely t cause severe harm t himself r thers, a presiding fficer shuld have the discretin t craft an apprpriate rder fr the State patient, pending the availability f a bed in a psychiatric hspital. 15 The applicatin f the sectin t children is f particular cncern. The Curt was perturbed that sectin 77(6)(a) applies particularly harshly in respect f children. This was because the presiding fficer has n discretin t cnsider alternative diversinary ptins which are available in terms f sectin 53 f the Child Justice Act. 16 Safeguards in the Mental Health Act are lacking in the CPA. The Mental Health Act prvides that a persn wh has a mental disability is t be institutinalised nly if any delay in prviding care, treatment and rehabilitatin services r admissin may result in the (i) death r irreversible harm t the health f the user; (ii) user inflicting serius harm t himself r herself r thers; r (iii) user causing serius damage t r lss f prperty belnging t him r her r thers. In effect, then, accused persns are mre readily institutinalised under the Criminal Prcedure Act withut the rdinary safeguards prescribed by the Mental Health Care Act. If the persn has been fund t have cmmitted n ffence, the mere fact f cming int cntact with the criminal justice system, cannt alne warrant institutinalisatin. Imprisnment shuld nly be available t accused persns wh pse a serius danger t sciety r themselves. 17 Hwever, unlike the High Curt the Cnstitutinal Curt was f the view that it was ratinal and cnstitutinally permissible fr the Criminal Prcedure Act t treat accused persns under sectins 77(6)(a) and 78(6) differently. Cnsequently, the Curt did nt agree with the High Curt s rder that the ptins prvided in sectin 78(6) be read in t sectin 77(6)(a)(i). The Cnstitutinal Curt held that in engaging the pwers affrded t it under sectin 172 f the Cnstitutin, it must weigh up a number f cnsideratins when crafting an rder that is just and equitable. This Curt was cnscius that the remedy must nt unduly trespass n the terrain f the Legislature. The Curt fund that: 18 14 Ibid 15 Ibid 16 Ibid 17 Ibid 18 Ibid Research Unit CPA Bill [B2-2017] Page 6 f 15

Sectin 77(6)(a)(i) perates ratinally subject t certain qualificatins. Imprisnment shuld nly be available t accused persns wh pse a serius danger t sciety r themselves. If an accused persn des nt pse a serius danger t sciety r themselves, then resurces alne cannt dictate that an accused persn be placed in prisn. If resurces alne require an accused persn t be kept in prisn, then t this extent, sectin 77(6)(a)(i) is incnsistent with the Cnstitutin and is invalid. If resurces are significantly cnstrained such that a bed in a psychiatric hspital is unavailable, then a presiding fficer shuld be able t craft an apprpriate rder that encmpasses treating the accused as an utpatient, fr example, by extending the bail cnditins, r any ther apprpriate rder pending the availability f a bed in a psychiatric hspital. 19 In relatin t children, a presiding fficer must be affrded a discretin s as t ensure that detentin is undertaken as a last resrt and fr the shrtest pssible perid. On this basis the curt fund that sectin 77(6)(a)(i) was invalid t the extent that it permitted imprisnment based n resurce cnsideratins nly and mandated the detentin f children. N rder was made fr the interim perid. 20 The curt held that the issue was cmplex and plycentric and best handled by the Legislature. Sectin 77(6)(a)(ii) als perates ratinally nly in respect f an accused persn wh is likely t inflict harm t himself r thers r requires care, treatment and rehabilitatin. T the extent that sectin 77(6)(a)(ii) prescribes that all accused persns must be institutinalised, regardless f whether they are likely t inflict harm t themselves r thers and d nt require care, treatment and rehabilitatin in an institutin, it is incnsistent with the Cnstitutin. The mere fact that an accused persn brushes shulders with the criminal justice system is nt a just cause fr institutinalisatin and this renders the prvisin cnstitutinally invalid in respect f such persns. 21 Hwever unlike with sectin 77(6)(a)(i) the Curt fund that in the case f sectin 77(6)(a)(ii) reading in was apprpriate t extend the number f ptins available t a presiding fficer where the accused has cmmitted either n ffence r a minr ffence. In the Curts view a reading-in, in this instance, accrds firmly with the purpse f the legislatin. It is als always available fr the Legislature t amend the prvisin as it deems fit at a later stage, prvided such amendment cmplies with this judgment and the Cnstitutin. 22 19 Ibid 20 In the interim, sectin 49D f the Crrectinal Services Act gives sme slace in that it requires that detained persns suspected f having a mental illness receive mental health care services [68] Sectin 49D, entitled [m]entally ill remand detainees, prvides: (1) The Natinal Cmmissiner may detain a persn suspected t be mentally ill, in terms f sectin 77(1) f the Criminal Prcedure Act r a persn shwing signs f mental health care prblems, in a single cell r crrectinal health facility fr purpses f bservatin by a medical practitiner. (2) The Department must prvide, within its available resurces, adequate health care services fr the prescribed care and treatment f the mentally ill remand detainee. (3) The Department must, within its available resurces, prvide scial and psychlgical services in rder t supprt mentally ill remand detainees and prmte their mental health. 21 Para [66] 22 Ibid para [67] Research Unit CPA Bill [B2-2017] Page 7 f 15

ORDER OF THE CONSTITUTIONAL COURT (i) Sectin 77(6)(a)(i) f the Criminal Prcedure Act 51 f 1977 is incnsistent with the Cnstitutin and invalid t the extent that it prvides fr: (a) cmpulsry imprisnment f an adult accused persn; and (b) cmpulsry hspitalisatin r imprisnment f children. The declaratin f invalidity is suspended fr a perid f 24 mnths frm the date f this judgment in rder t allw Parliament t crrect the defects in light f this judgment. (ii) Sectin 77(6)(a)(ii) f the Criminal Prcedure Act 51 f 1977 is incnsistent with the Cnstitutin and invalid. Frm the date f this rder sectin 77(6)(a)(ii) is t read as fllws: (ii) where the curt finds that the accused has cmmitted an ffence ther than ne cntemplated in subparagraph (i) r that he r she has nt cmmitted any ffence (aa) be admitted t and detained in an institutin stated in the rder as if he r she were an invluntary mental health care user cntemplated in sectin 37 f the Mental Health Care Act 17 f 2002; (bb) be released subject t such cnditins as the curt cnsiders apprpriate; r (cc) be released uncnditinally. 2.3 Western Cape High Curt: S v Pedr [2015] (1) SACR 41 (WCC) In terms f sectin 77(1) and 78(2) f the CPA, a curt can refer an accused at any stage f the trial fr a psychiatric assessment f his r her mental state. The accused is usually admitted t a state psychiatric hspital under a warrant fr a perid f bservatin f 30 days. Sectin 79 f the Criminal Prcedure Act deals with the cnstitutin f the panel which is established fr this assessment. Accrding t the CPA: 23 In sectin 79(1)(a) which prvides fr cases invlving less serius ffences, the curt shall appint a single psychiatrist t perfrm the bservatin n behalf f the state. These cases include all nn-vilent r less vilent/minr vilent cases, including cmmn assault, as well as prperty ffences such as theft, cmmn rbbery, husebreaking, trespassing and malicius damage t prperty. 24 In sectin 79(1)(b), which prvides fr all cases where the accused is charged with murder, culpable hmicide, rape r anther charge invlving serius vilence r if the curt cnsiders it necessary in the public interest, there is a need fr a full panel enquiry cnsisting f: 23 Schutte T, (2013). Single v. panel appinted frensic mental bservati ns: Is the referral prcess ethically justifiable? The Suth African Jurnal f biethics and Law (Accessed at http://www.sajbl.rg.za/index.php/sajbl/article/view/286/317) 24 Swanepel M 2015 Legal Aspects with Regard t Mentally Ill Offenders in Suth Africa (Accessed at http://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/pper/issuepages/2015vlume18n1/perswanepelnte2015(18 )1.pdf) Research Unit CPA Bill [B2-2017] Page 8 f 15

A psychiatrist acting n behalf f the state (either the medical superintendent f the hspital where the accused is under bservatin r a psychiatrist appintment by the medical superintendent at the request f the curt) (sectin 79(1)(b)(i)) A psychiatrist (wh is nt in the fulltime service f the state) wh is appinted by the curt (unless the curt directs therwise upn applicatin by the prsecutr in accrdance with directives issued under s79(13)) (sectin 79(1)(b)(ii)) A psychiatrist appinted fr the accused by the curt (sectin 79(1)(b)(iii)); and where the curt directs by a clinical psychlgist (sectin 79(1)(b)(iv)). The matter befre the High Curt in the Pedr case invlved the establishment f a psychiatric panel t reprt n the mental health f the accused. The curt f first instance in the matter, the Outsdhrn Magistrate Curt, had nt appinted a psychiatrist fr the accused (wh in mst cases wuld be a state psychlgist) nr was a private psychlgist appinted. Sectin 79(1)(b)(ii) states that the curt must appint a (private) psychiatrist, unless directed therwise by the prsecutr. The Curt nted that prir t the amendment f sectin 79(1)(b) by the Judicial Matters Amendment Act 66 f 2008, the sectin prvided that the appintment f a private psychiatrist by the curt was mandatry. Hwever, in 2008 the Justice Department tabled legislatin which amended this sectin n the basis that it was almst impssible t apply in sme parts f the cuntry (mainly Gauteng) due t the nn-availability f private psychiatrists willing t d bservatins. 25 The amendments prvided fr in Act 66 f 2008 were intended t: Allw the curts t d away with the appintment f a psychiatrist by the curt, but nly at the request f the prsecutr. The prsecutr wuld be permitted t make such a request nly in accrdance with directives issued by the Natinal Directr f Public Prsecutins. The NDPP must issue these directives, setting ut the cases and circumstances in which a prsecutr may make such a request. 26 Hwever, as the Curt pinted ut due t pr drafting smething went wrng in the frmulatin f the directives prvided fr in sectin 79(13). 27 Instead f empwering the NDPP t issue directives regarding the cases and circumstances in which a prsecutr must apply t curt t dispense with, the appintment f a psychiatrist the directives prvide fr circumstances where. the prsecutr can apply fr the appintment f a third psychiatrist : 28 25 The memrandum t the Bill makes it perfectly clear that the prmters f the bill, which was adpted unchanged, intended the amendments t have the effect f empwering the prsecutr t request the curt t d away with psychiatrist and empwering the NDPP t issued directives setting ut the circumstances in which prsecutrs shuld make such requests. 26 De Vs N.O and Anther v Minister f Justice and Cnstitutinal Develpment and Others; In Re: Snyders and Anther v minister f Justice and Cnstitutinal Develpment and Others (4502/10, 5825/14) 2015 (1) SACR 18 (WCC)Para [38] 27 Para [45] The Curt was tld that these directives were duly made in cnsultatin with the Minister and were duly submitted t Parliament. 28 Para [60] 4. Factrs that may be cnsidered by a DPP in using his/her discretin t authrise r direct a prsecutr t apply fr the appintment f a third psychiatrist fr bservatin purpses include (a) the seriusness f the ffence; (b) the cmplexity f the evidence; (c) whether the accused persn wishes the curt t appint a psychiatrist f his r her chice; and Research Unit CPA Bill [B2-2017] Page 9 f 15

Paragraph 1 f the directives recrds that the amended sectin 79 prvides fr the appintment f a panel f nly tw psychiatrists, unless the prsecutr applies fr the appintment f a third psychiatrist. Paragraph 2 states that prsecutrs may nly apply fr the appintment f a third psychiatrist, in accrdance with s 79(1)(b)(ii), in terms f the written authrity r directive frm the relevant DPP. In light f the cnfusin ver the interpretatin f sectins 79(1)(b)(ii) and 79(13) the High curt s interpretatin was that the fllwing shuld apply - three psychiatrists, including a private psychiatrist, must be appinted when the case falls within s 79(1)(b) unless the curt, upn applicatin by the prsecutr, directs that a private psychiatrist need nt be appinted, in which case there must be tw psychiatrists. In either event, the curt may als appint a clinical psychlgist. The directives cntemplated in s 79(13) are directives setting ut the cases and circumstances in which prsecutrs must request the curt t dispense with the appintment f a private psychiatrist. 29 The Curt expressed the view that while State psychiatrists undubtedly attempt t assist the curt with what they regard as their independent expert views, the legislative requirement fr a private psychiatrist must have been premised n the ntin that the presence f such a psychiatrist n the panel wuld prvide greater prtectin fr the rights f the accused. In a brad sense, there is an institutinal cnnectin between the prsecutin and the State psychiatrists, all being public servants. Where tw State psychiatrists are n the panel, they will ften be emplyed at the same psychiatric hspital. Cnsideratins f cllegiality might tend, subcnsciusly, twards cnsensus; r differences in senirity might result in ne psychiatrist displaying sme deference t the ther. There is even danger that, due t the great pressure n State psychiatric resurces, the primary assessment in respect f a particular accused will be left t ne f the State psychiatrists, with the ther prviding mre f a supprting rle. 30 There is nthing t indicate that the plicy cnsideratins in favur f appinting a private psychiatrist have disappeared. What can be accepted, thugh is that the appintment f a private psychiatrist will always entail expense fr the State; and that it may nt always be easy t find a private psychiatrist willing t accept appintment. The Curt acknwledged that it culd well understand that, in the circumstances, the judicial fficer shuld be vested with a discretin t dispense with the appintment f a private psychiatrist if such a request were prperly mtivated. (d) the histry f the particular accused persn (e.g. previus bservatins f the accused persn). 5. Where an applicatin is brught fr the appintment f a third psychiatrist and the accused persn is nt legally represented, the prsecutr must request the curt t cnsider the appintment f a legal representative fr the accused persn in terms f sectin 77(1A) f the Criminal Prcedure Act, 1977. 29 Para [69] 30 Para [52] Research Unit CPA Bill [B2-2017] Page 10 f 15

Hwever, the effect f the interpretatin advanced n behalf f the Minister and DPP is that the curt des nt have the pwer t appint a private psychiatrist unless the prsecutr makes applicatin fr such appintment. I cannt cnceive that the lawmaker intended t place it in within the pwer f the prsecutr t determine, unilaterally, that there shuld be n private psychiatrist. The decisin as t whether a private psychiatrist shuld be appinted wuld ultimately be in the hands f the curt. 31 In its cnclusins the curt in the Pedr case identified a number f challenges with sectin, 79, namely: 32 (i) (ii) (iii) (iv) The term medical superintendent is ut dated n lnger exists in psychiatric hspitals and shuld be amended t cnfrm with current terminlgy at psychiatric hspitals. In respect f sectin 79(1)(b)(ii), the appintment f a private psychiatrist is mandatry, unless the curt upn applicatin frm the prsecutr, directs that the appintment f a private psychiatrist may be dispensed with. The directives cntemplated in sectin 79(1)(b)(ii) read with sectin 79(13) are directives regarding the cases and circumstances in which the prsecutr must apply t the curt t dispense with the appintment f a private psychiatrist. Pending the revisin f the directives which have been issued by the NDPP in terms f sectin 79(13), the directives currently in existence shuld be cnstrued as determining the circumstances in which the prsecutr shuld apply t the curt t dispense with the appintment f a private psychiatrist. It is, hwever, desirable, t avid cnfusin, that the directives issued by the NDPP be revised t cnfrm with the declared meaning f s 79(1)(b)(ii) as sn as may be expedient. Cmment The Curt in the Pedr case expressed cncern ver the absence f a legislative prcedure t ensure the DPP receive peridic reprts as t the mental health status f a persn wh has been referred fr detentin in terms f sectin 77(6)(a)(ii) f the CPA. 33 The prsecutin f such a persn shuld rdinarily prceed if the accused recvers sufficiently t be able t understand the prceedings. The Department f Justice and Cnstitutinal Develpment, hwever, assured the Prtfli Cmmittee during deliberatins n the bill that there are prtcls in place between the DPP and the mental health care authrities regarding t ensure the prsecutin service is timeusly infrmed f relevant develpments in the accused s mental health status. 31 Para [53]. 32 Para [116] 33 Para [114] Research Unit CPA Bill [B2-2017] Page 11 f 15

3. ANALYSING THE CPA BILL [B2B 2017] Essentially, the key amendments prpsed by the CPA Bill [B2B 2017] seek t address the: Use f the term mental defect which is ffensive and inapprpriate. Lack f discretin fr a presiding fficer when applying sectin 77 f the CPA. 34 Uncnstitutinality f the cmpulsry incarceratin r institutinalisatin f an accused persn in a prisn which amunts t an arbitrary deprivatin f freedm. Need t prvide the curts with a wider range f ptins in respect f rders t be issued in terms f sectin 77 in cases f findings that accused persns are nt capable f understanding criminal prceedings. Challenges with the cmpsitin f the panel f experts that must be established in terms f sectin 79 t assess the mental health f an accused. 3.1 Sectin 77 Capacity f accused t understand prceedings The prpsed amendments t sectin 77: Delete the reference in sectin 77(1) t mental defect and replace it with intellectual disability. Intrduce judicial discretin in sectin 77(6)(a) by prviding that the curt MAY direct that the accused be detained. In thse cases, where the charges against the accused are serius (murder, rape etc): Delete the reference in sectin 77(6)(i)(aa) t prisn and prvide instead in sectin 77(6)(ii)(bb) that a presiding fficer may rder temprary detentin in a crrectinal health facility f a prisn if a bed is nt available fr that persn in a psychiatric hspital (t which the accused shuld be t be transferred when a bed des becme available) in thse cases where the accused pses a serius threat t him r herself r members f the public. The detentin in a psychiatric hspital r prisn is nly until a judge in chambers makes a decisin in terms f sectin 47 f the Mental Health Care Act. Insert additinal ptins t prvide that a presiding fficer may direct that an accused persn be admitted and detained in a designated health establishment as if he r she were an invluntary health care user (sectin 77(6)(i)(cc)); r be released subject t such cnditins as the Curt cnsiders apprpriate (sectin 77(6)(i)(dd)). In thse cases, where the charges are less serius prvide additinal ptins in sectin 77(6)(ii) fr the presiding fficer t rder the accused is: Released subject t such cnditins as the curt cnsiders apprpriate (sectin 77(6)(ii) (bb)) Released uncnditinally where the curt has fund the accused has nt cmmitted any ffence (sectin 77(6)(ii) (cc)). 34 Rickard C, A case fr the mentally disabled, 14 Nvember 2014 (Accessed at http://mg.c.za/article/2014-11-13-acase-fr-the-mentally-disabled) Research Unit CPA Bill [B2-2017] Page 12 f 15

Prvide in sectin 77(9) that, in the case f a successful appeal against a finding that an accused persn is capable f understanding the prceedings, the matter must be referred back t the curt that made the finding fr that curt t deal with. Cmments / Questins Cnsultatin by the Department f Justice and Cnstitutinal Develpment Accrding t the Department it had cnsulted with the Department f Health and ther experts in the mental health field abut the use f the term intellectual disability. A task team cnsisting f the Departments f Justice, Health Crrectinal Services, the NPA and Suth African Plice Services wrked tgether in drafting a Bill. Cape Mental Health and the Cmmissin n Gender Equality submitted cmments during public cnsultatin prcess. The Cnstitutinal Curt held that the issues arund sectin 77(6)(a)(i) were cmplex and plycentric and best handled by the Legislature. N cmments were received n the prpsed amendments frm members f the judiciary/magistracy. Temprary detentin f an accused in a crrectinal health facility. The amendments t sectin 77(6)(a)(i) and 78(6)(b)(i) prvide that the curt may, in the case f an accused wh has cmmitted a serius ffence, rder temprary detentin in a crrectinal health facility (presumably because f resurce cnstraints and limited capacity at psychiatric hspitals) until a bed becmes available in a psychiatric hspital. The DCS White paper n Remand Detentin ntes that sme remand detainees wait in a detentin facility fr mre than tw years fr a bed in a mental health establishment. 35 Accrding t the DOJCD there are (i) prtcls in place between the DCS and Department f Health t ensure the transfer f such persns nce a bed in a psychiatric hspital des becme available and (ii) established prcesses / prtcls in place fr the management f an accused wh is temprarily detained in a crrectinal health facility. Hw effective is sectin 49D f the Crrectinal Services Act 111 f 1998 in prviding that detained persns suspected f having a mental illness receive mental health care services? 3.2 Sectin 78 Mental Illness r mental defect and criminal capacity The prpsed amendments t sectin 78: Delete the reference in the heading, sectins 78(1), 78(1A) and 78(2) t mental defect and replace it with intellectual disability. 35 DCS White Paper n Remand Detentin Management in Suth Africa (March 2014) (Accessed at http://www.dcs.gv.za/dcs/landing/white%20paper%20n%20remand%20detentin%20management%20in%20su th%20africa.pdf) Research Unit CPA Bill [B2-2017] Page 13 f 15

Delete the reference t the term prisn in sectin 78(6)(i)(aa) and insert a new clause in 78(6)(i)(bb) t enable a presiding fficer t rder temprary detentin in a crrectinal health facility f a prisn if a bed is nt available fr that persn in a psychiatric hspital (t which the accused shuld be t be transferred when a bed des becme available) in thse cases where the accused pses a serius threat t him r herself r members f the public. The detentin in a psychiatric hspital r prisn is nly until a judge in chambers makes a decisin in terms f sectin 47 f the Mental Health Care Act. 3.3 Sectin 79 - Panel fr purpses f enquiry and reprt under sectins 77 and 78 The prpsed amendments t sectin 79: Delete the reference in sectins 79(1)(a), 79 (b)(i) and 79(4)(d) t medical superintendent f a psychiatric hspital and replace it with head f the designated health establishment. Prvide fr a reference in sectin 79(1)(b)(ii) nly t a psychiatrist appinted by the curt by deleting the prvis that such a psychiatrist is nt in the fulltime service f the state unless the curt directs therwise upn the applicatin f the prsecutr in accrdance with directives issued under subsectin 13 by the by the NDPP. Insert in sectin 79(1)(b)(iii) the prvis that any psychiatrist appinted by the curt fr the accused must nly be appinted n gd cause shwn and by applicatin by the accused, Insert in sectin 79(1A) the term mental cnditin. Delete in its entirety sectin 79(13) which prvides fr the directives that must be prduced by the Natinal Directr f Public Prsecutins. Cmment In the Pedr case the Curt nted a respnse frm the Western Cape Directr f Public Prsecutins (DPP) which highlighted the irrecncilable difference f pinin within the Western Cape ffice regarding the cmpsitin f psychiatric panels. 36 Apparently guidance was being sught frm the Natinal Directr f Public Prsecutins. Perhaps sme infrmatin culd be prvided n what these irrecncilable differences were and whether these will be reslved by these amendments. In respect f the amendments t sectin 79(1)(b)(ii) which will nw refer t a psychiatrist appinted by the curt : What is the reasning fr the remval f the rle f the prsecutr frm sectin 79(1)(b)(ii)? The curt in the Pedr case did nt bject t the rle played by the prsecutr but stated that there was prblem with the interpretatin f the sectin and the drafting f the directives in sectin 79(13). The Curt held that it was desirable, in rder t avid cnfusin, that the directives issued by the NDPP be revised t cnfrm with the declared meaning f s 79(1)(b)(ii). 36 S v Pedr [2015] (1) SACR 41 (WCC) para [9] Research Unit CPA Bill [B2-2017] Page 14 f 15

4. SOURCES Criminal Prcedure Act 51 f 1977 De Vs N.O and Anther v Minister f Justice and Cnstitutinal Develpment and Others; In Re: Snyders and Anther v Minister f Justice And Cnstitutinal Develpment and Others 2015 (1) SACR 18 (WCC) De Vs N.O and Others v Minister f Justice and Cnstitutinal Develpment and Others 2015 (2) SACR 217 (CC) S v Pedr (B247/11) [2015] (1) SACR 41 (WCC) Schutte T, (2013). Single v. panel appinted frensic mental bservatins: Is the referral prcess ethically justifiable? The Suth African Jurnal f biethics and Law (Accessed at http://www.sajbl.rg.za/index.php/sajbl/article/view/286/317) Swanepel M 2015 Legal Aspects with Regard t Mentally Ill Offenders in Suth Africa (Accessed at http://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/pper/issuepages/2015vlume18n1/pe RSwanepelNte2015(18)1.pdf) Research Unit CPA Bill [B2-2017] Page 15 f 15